I've timed it, and I think I can keep it to a bit less than 10 minutes.
My colleague, Monsieur Ricard, has been unavoidably detained, but he should be here very shortly.
Thank you, Mr. Chairman.
It is a pleasure to be here once again to discuss Bill C-44. Today, I would like to comment on some of the testimony you have heard, and then my colleagues and I would be pleased to answer your questions.
As you are fully aware, Bill C-44 addresses an important principle. Simply put, this Bill will ensure all Canadians share in the right to be free from discrimination under the Canadian Human Rights Act. This Bill responds to repeated calls for repeal of section 67 and would remove a discriminatory provision which was originally intended as a temporary measure.
Let us talk about the difficult matter of balance. Mr. Chairman, your committee will soon have the extremely important work of determining how to deal with clause-by-clause study of Bill C-44, a task that will no doubt be informed by the vast testimony provided.
Witnesses have addressed the wide range of issues and offered many different perspectives. I think it would be fair to say that there are many areas in which testimony provided has not pointed to a clear consensus. On some issues, greater clarity may be useful to assist you in your deliberations.
In particular, we could highlight the discussions on the question of whether or not there is a need for an interpretive or a non-derogation clause. This is clearly a key issue for which there is no simple or consensus-based solution and around which there are many different conceptions.
Some witnesses have called for a non-derogation clause. Others have proposed interpretive clauses. Still others have proposed both or have used the terms interchangeably. Some witnesses have suggested that a provision be included in the Canadian Human Rights Act, while others, most notably the Canadian Human Rights Commission, have proposed that guidelines be developed outside the act, in concert with aboriginal communities.
It is important to distinguish between these two kinds of provisions. A non-derogation clause is a provision that sets out the relationship between a statute and the aboriginal and treaty rights protected by section 35 of the Constitution Act, 1982. The CHRA, like all other statutes, is automatically subject to the operation of section 35.
As the commission indicated in its report on the repeal of section 67, a non-derogation clause in the CHRA referring to section 35 of the Constitution would be redundant. In addition, such a clause may be problematic, as courts may treat the provision as giving additional protection to aboriginal and treaty rights beyond that provided by section 35.
In contrast to a non-derogation clause, an interpretive provision is a substantive clause that directs officials or tribunals to apply or interpret the statute in a particular way. In the context of the CHRA, in complaints against first nations it could be a provision that ensures that discrimination and defences under the CHRA are interpreted in a way that respects the collective and cultural interests of the first nation.
There are differing views about whether such a provision should be inside or outside of the CHRA and whether it should be a statement of principle or a substantive provision, and there have been various formulations proposed with differing effects. We have seen from experience that in an attempt to reach some consensus, interpretive clauses inevitably end up with language that is general and rather vague. The job of determining the precise meaning to be given to an interpretive clause will therefore fall to the tribunal, resulting in litigation to ultimately determine the issue on a case-by-case basis.
In our view, for the reasons l've just set out, including a statutory non-derogation or interpretive clause may result in legal challenges with uncertain or unintended consequences, including a possible weakening of the protection that the repeal of section 67 would bring.
Moreover, we don't believe a non-derogation clause is required. Rather than including a statutory interpretive provision, the commission could work with first nations and other aboriginal communities to develop appropriate guidelines, regulations, or policies to ensure that the CHRA is applied in a manner that is consistent and sensitive to the particular needs of those communities.
The commission's aboriginal employment policy is a key example of how the CHRC has already exercised its authority to address the needs of aboriginal people.
The other topic I would like to comment on today is the preparation for and impact of repeal. Many concerns have been put forth to this committee. It is certainly not the Minister's or the department's objective to further burden the First Nations as a result of repealing section 67.
The application of the Canadian Human Rights Act to federal programs and to First Nations is not entirely new. As Professor Chartrand pointed out in his testimony, the Commission and the courts have interpreted section 67 narrowly. Many activities that take place on reserves or are administered by the Department are already subject to the Act. So, while the repeal of section 67 is extremely important, we should not overstate the potential impacts.
Chief Commissioner Lynch testified that the Commission currently handles over 40 cases per year and Professor Chartrand concluded that the impacts would be “moderate” following repeal. We do not anticipate a huge influx of complaints. But we all knowledge that it is not possible to accurately predict the number of individual human rights complaints that would be directed to band councils, as these would be fact-specific, driven by whether an individual chooses to lodge a complaint if, for example, they feel that they have unjustifiably been denied a job or service.
Safeguards have been provided to give first nations time to adjust and to help them prepare, that is, there will be the six-month delay of the coming into force of the repeal and guidance from the commission.
As you are aware, the commission's funding is being adjusted to support its extended responsibilities following the repeal of section 67. It has established a national aboriginal program and is committed to the introduction of human rights redress mechanisms in a manner consistent with the diverse cultures and modes of decision-making of first nations in Canada.
You may wish to question commission representatives further on this matter during their appearance today and to also discuss with them the work they plan to undertake under their program. I'm certain that their testimony will go a long way towards alleviating some of the fears expressed by first nation groups and individuals that they will be alone in shouldering the impact of repeal.
Bill C-44 also includes a means to address unintended consequences, should they result, by way of clause 2 of the bill. This mandatory review of the effects of the repeal must occur within five years but could occur earlier if the designated parliamentary committee so chooses. The committee could also request a comprehensive response from the government on its findings.
Your committee has heard various views on the length of the transition period. Although six months has been viewed by many as insufficient, I would suggest that it is an adequate amount of time for first nations to begin to prepare for full implementation and for the commission to work with communities. And of course work with the first nations does not end after the transition period. Rather, work will be ongoing as the effect of the repeal becomes more clear and as we gain experience. On this and other issues, Minister Prentice welcomes the recommendations the committee will reach after hearing such a broad scope of witnesses.
In closing, Bill C-44 committee hearings have provided witnesses with an opportunity to express their concerns about the need to ensure Aboriginal rights, traditions and cultures are protected. This testimony has been passionate at times. I would like to acknowledge the concerns raised. I would also note that with the exception of two witnesses, all witnesses have testified that they support the principle of repealing section 67, further demonstrating the overwhelming desire to eliminate this exemption. I would respectfully suggest any considered changes to Bill C-44 need to be assessed against this important principle and the urgency of taking action.
Once again, Mr. Chairman and members of the committee, thank you for your invitation to reappear before you today. My colleagues and I are prepared to answer your questions.
